The U.S. Court of Appeals today held that the military detention of U.S. resident alien Ali Saleh Kahlah al-Marri is unlawful: "We conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found noauthority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian."

Note that the decision depends on the fact that al-Marri was a resident of the U.S., and therefore protected by the Due Process Clause. The decision therefore would not necessarily resolve similar questions with respect to aliens not protected by the Due Process Clause -- and renders even more important the question whether aliens captured and held abroad, or at Guantanamo, have constitutional rights. But I haven't finished reading yet, so that's only a very tentative caution. [UPDATE: A Post identifying the two "holdings" of the case -- including the one that is less prominent but probably more important (hint: it involves absuive interrogation) -- here.]

More to follow, but in the meantime, here's the lede:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute -- enacted years after al-Marri’s seizure -- strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri. If the Government accurately describes al-Marri’s conduct, he has committed grave crimes. But we have found no authority for holding that the evidence offered by the Government affords a basis for treating al-Marri as an enemy combatant, or as anything other than a civilian.

This does not mean that al-Marri must be set free. Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the surviving conspirator of the September 11th attacks, al-Marri can be returned to civilian prosecutors,tried on criminal charges, and, if convicted, punished severely. But the Government cannot subject al-Marri to indefinite military detention. For in the United States, the military cannot seize and imprison civilians -- let alone imprison them indefinitely.

To sanction such presidential authority to order the militaryto seize and indefinitely detain civilians, even if the Presidentcalls them “enemy combatants,” would have disastrous consequencesfor the Constitution -- and the country. For a court to uphold aclaim to such extraordinary power would do more than renderlifeless the Suspension Clause, the Due Process Clause, and therights to criminal process in the Fourth, Fifth, Sixth, and EighthAmendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a courtto recognize it -- that could lead all our laws “to go unexecuted,and the government itself to go to pieces.” We refuse to recognizea claim to power that would so alter the constitutional foundations of our Republic.

And I love the way they draw the distinction between the President's power to order an initial detention and the actual due process involved in making a determination that the President's determination is "proper."

We do not question the President’s war-time authority over enemy combatants; but absent suspension of the writ of habeas corpus or declaration of martial law, the Constitution simply doesnot provide the President the power to exercise military authority over civilians within the United States. See Toth, 350 U.S. at 14 (“[A]ssertion of military authority over civilians cannot rest on the President’s power as commander-in-chief, or on any theory of martial law.”). The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinitemilitary detention. Put simply, the Constitution does not allowthe President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemycombatants.”

The President’s constitutional powers do not allow him to order the military to seize and detain indefinitely al-Marri without criminal process any more than they permit the President to order the military to seize and detain, without criminal process, other terrorists within the United States, like the Unabomber or the perpetrators of the Oklahoma City bombing.

You know this was a test case for Bushit's effort to establish as law his "authority" to use the military within the US, also to seize ordinary US citizens and imprison them indefinitely without charges, etc.

Best, of course, to attempt that with a defendant who's #1 on the current "To be Hated" list: Muslim, not-white.

It's hearening that some judges remember the law as it once was, and is to be in the present. But in view of the extremist hacks which have been put on the bench by Reagan, Bush, and Bush, my anxiety isn't entirely assuaged.

The court also avoided, by choosing a narrow interpretation of the MCA statute, the broader question of whether the MCA's habeas-stripping is constitutional. - Jao

You're right to draw this distinction because it is an important one to note, but I think the court was correct in finding that as a matter of law the MCA does not apply when you have a legal alien accused of criminal activity.

The Circuit Court found the government's claim of "inherent" presidential authority to order military detention of civilians to be "breathtaking," and was broad enough even to allow detention of U.S. citizens.

Applying the late Justice Robert H. Jackon's suggested framework for evaluating claims of presidential authority, the panel found that President Bush was acting at the "lowest ebb" of presidential authority in ordering military detention of a civilian captured in the U.S....

You may find this interesting to consider from the recent European report.

"The rendition, abduction, and detention of terrorist suspects have always taken place outside the territory of the United States, where such actions would no doubt have been ruled unlawful and unconstitutional. Obviously, these actions are also unacceptable under the laws of European countries, who nonetheless tolerated them or colluded actively in carrying them out. This export of illegal activities overseas is all the more shocking in that it shows fundamental contempt for the countries on whose territories it was decided to commit the relevant acts. The fact that the actions only apply to non-American citizens is just as disturbing: it reflects a kind of 'legal apartheid' and an exaggerated sense of superiority. Once again, the blame does not lie solely with the Americans, but also, above all, with European political leaders who have knowingly acquiesced in this state of affairs."

Jurisdiction -- Majority -- constitutional avoidance on grounds of no determination (analysis is tortured for this reason not because majority doesn't know it is tortured); Dissent-- MCA is an unconstitutional law in this context.

Merits -- Majority -- Civilians who help terrorists are criminals unless they bear arms in combat or are members of a military (Al-Marri is a civilian, Hamdi and Padilla bore arms); Dissent-- civilians who help terrorists are soldiers.

This panel should have stopped with its solid holding that the Patriot Act sets the rules for the detention of alien terrorists like al Masri and called it a day. Congress has the Article I power to set rules for Captures and did so in the Patriot Act for alien terrorists captured in the US. Under Sec. 236(A)(a) of the Patriot Act, the government has to either deport an alien terrorist like al Masri or try him as a criminal defendant. Section 236A)(b) also provides habeas jurisdiction to the federal courts to enforce subsection (a). This opinion could have been 5 pages long and granted al Masri the relief he sought on these grounds alone.

However, rather than leaving well enough alone, Judge Motz could not resist doing her impression of the 9th Circuit's Judge Reinhart and spent sixty pages misrepresenting and rewriting both the MCA and the law of war with which she disagreed. I will probably have some fun after work shredding this judge's specious reasoning as to the MCA and what constitutes a lawful and unlawful enemy combatant and a civilian.

There is also an interesting hypothetical of whether the Government can simply deport al Masri straight to Gitmo or to a third country, re-capture him and send him to Gitmo. If al Masri fights deportation, the AG can keep holding him until he no longer poses a danger, which is not much different than what the military is doing by detaining him as an unlawful enemy combatant.

But, for now, I will limit myself to what the panel should have - the Patriot Act.

After years of nonsense about how the government transferred Padilla to criminal court to avoid an appeal of his case to the Supreme Court, we now have a second case from the same Circuit based on another inmate of the same prison.

Those who claim that the Padilla decision would certainly be overturned will be dismayed to find that this new decision claims that the Padilla decision was 100% correct. Padilla was properly held as an enemy combatant because he was a Taliban soldier on the battlefield in Afghanistan. Fortunately, it arrives at this conclusion by misquoting and mirepresenting the content of the Padilla decision. This pretense will not hold up, so we can expect the Fourth Circuit to try to reconcile the two conflicting decisions before the case goes before the Supreme Court.

Finally we can get around the nonsense and see how Padilla's case, or a version of it, is really handled by the Supreme Court.

al-Marri was here legally and thus is entitled to due process of the law.

Under Quirin, al Marri forfeited his 5th and 6th Amendment rights to a criminal trial when he engaged in acts which made him an unlawful enemy belligerent.

Judge Motz's claim that Qurin did not apply because members of non-state groups like al Mirri cannot be wartime enemy combatants is completely without basis in history or law.

Historically, we have frequently been at war with non state groups and have taken prisoner members of pirate groups, Indian tribes and a wide variety of partisan and guerilla groups.

As for the law, Judge Motz disingenuously cited only one of multiple definitions of enemy combatants subject to wartime detention in Article 4 of the GC for the proposition that only members of a government military organization can be enemy combatants. She willfully ignored the very next Article 4 provision which expressly provides combatant status to non state military groups.

Mr. Bush correctly determined that al Marri was an unlawful enemy combatant as that term is normally defined. Nonwithstanding Judge Motz's legal gymnastics, the only genuine legal remedy which al Marri had to escape military protective detention is that the Patriot Act allocated that detention power to the AG until he could remove al Marri from the country or send him to a criminal trial.

Bart - I think you skip over the important question. The US may go to war with various non-State parties (Pancho Villa for example) and may take prisoners during such wars. However, the Quirin-Padilla-al Marri situation involves a very specific type of belligerency, that of sending an "operator" (spy) behind lines to commit sabotage. There are circumstances (pirates) where we use military force against a non-state enemy but do not grant that enemy the legal status of lawful combatant nor grant the enemy leadership with the status that would classify their agents as spies.

Since the US claims that al Qaeda prisoners are inherently unlawful combatants, this strongly argues that al Qaeda commanders lack the recognized combatant status needed before their agents are spies. That would make al Marri a civilian. However, against this is the AUMF which directed the President to "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States" The organization responsible for 9/11 is al Qaeda, and the person responsible for the attack was Khalid Sheikh Mohammed, who also happened to be the military commander who sent both Padilla and al Marri to the US. So in the AUMF Congress may have, for the purpose of US law, "comissioned" KSM to be a legal bona fide enemy military commander, in which case Padilla and al Marri are spies and, in fact, are the specific persons against whom the Congress authorized the President to use "appropriate military force" "in order to prevent any future acts of international terrorism".

As for the law, Judge Motz disingenuously cited only one of multiple definitions of enemy combatants subject to wartime detention in Article 4 of the GC for the proposition that only members of a government military organization can be enemy combatants. She willfully ignored the very next Article 4 provision which expressly provides combatant status to non state military groups.

Oh, really? So al Marri fell under one of the other clauses of GC3, Article 4? Then he, by law must be treated as a POW, nicht wahr? (Not to mention all the rest of the Guantanamo detainees).

Bart, the classification assigned to Al-Marri has a basis in both history and law. Indeed, a very particular basis. The basis is that Al-Marri is just like Milligan, i.e. a civilian helping the enemy, rather than a combatant for the enemy. The distinction was made by none other than the U.S. Supreme Court in Ex Parte Milligan, which remains good law and has been cited by SCOTUS with approval as good law in the recent war on terror cases.

While there have been subsequent case on the "enemy combatant doctrine" in so far as Al-Marri is concerned they are dicta -- they all involved people who had taken up arms with the military wing of a foreign power.

Even if Al-Queda is just as much of a "nation" or organized actor as the Confederate States of America, the 4th Circuit ruling holds that enemies can have people like Milligan who aid them

The recent opinions in the SCOTUS war on terror cases have declined to define enemy combatant in the way that the administration would like it to do. It has hued close to the POW notion when it has reached the merits in those cases, and has implicitly talked about the relevant war in those cases being the war in Afghanistan, not the endless war on terror.

garth, I think you are incorrect. Al-Marri has been charged with a crime, but those indictments were dismissed (IIRC "with prejudice"). He was facing criminal prosecution when he was detained militarily.

He isn't currently facing criminal charges, but that is a different question.

"Mr. Bush correctly determined that al Marri was an unlawful enemy combatant as that term is normally defined." - Bart

I would like to know the documents, affidavits, testimonials or other indicia of evidence on which you relied to reach this factual conclusion.

Next, I would like to know, similarly, the documents, affidavits, testimonials or other indicia of evidence on which President Bush relied to reach the legal conclusion.

Please respond. In my opinion, this sentence forms the basis upon which all of the government's actions have been predicated. Setting aside the colorable claims of constitutionality by the gov't, I would like to know at least that the gov't met its burden under those claims.

Since the US claims that al Qaeda prisoners are inherently unlawful combatants, this strongly argues that al Qaeda commanders lack the recognized combatant status needed before their agents are spies. That would make al Marri a civilian.

I am having a hard time following your reasoning.

Where did you get the idea that unlawful combatants cannot also be spies?

How do you reason, as does Judge Motz, that a terrorist which does not fall under the category of a government combatant automatically becomes a civilian?

Bart: As for the law, Judge Motz disingenuously cited only one of multiple definitions of enemy combatants subject to wartime detention in Article 4 of the GC for the proposition that only members of a government military organization can be enemy combatants. She willfully ignored the very next Article 4 provision which expressly provides combatant status to non state military groups.

Oh, really? So al Marri fell under one of the other clauses of GC3, Article 4? Then he, by law must be treated as a POW, nicht wahr? (Not to mention all the rest of the Guantanamo detainees).

Speaking of being disingenuous...

Even Judge Motz recognized that there are two different elements to the definition of unlawful combatant - first, whether the person is a combatant and, second, whether the person is acting unlawfully.

When she claimed that members of non-governmental groups could not be combatants and were therefore civilians, the Judge was dealing with the first element of that definition.

al Marri (and the rest of the Gitmo detainees) do not fall under the GC, not because al Marri is not a combatant, but rather because this combatant was acting unlawfully.

"Where did you get the idea that unlawful combatants cannot also be spies". That isn't the claim. A military spy (Quirin) is an agent of a foreign military command who passes or attempts to pass through our lines while hiding his military status. However, if you deny KSM the status of a lawful combatant then you also deny him status as a commander, or even a commissioned officer, in a foreign military. If he is just a member of some unrecognized foreign fighting force, and not an actual commander, then his agents can no more be spies than agents of a drug cartel. That makes Padilla and al Marri criminals. Spies themselves are always unlawful belligerents, but their commander cannot himself be an unlawful belligerent or they aren't spies.

Even Judge Motz recognized that there are two different elements to the definition of unlawful combatant - first, whether the person is a combatant and, second, whether the person is acting unlawfully.

The Motz opinion doesn't have the word "unlawfully" (or even "unlawful" or "illegal") anywhere.

Motz said that al Marri hadn't been found to be a "enemy combatant" period.

OK, let's take a look at the convoluted non Patriot Act portions of the majority opinion. In order to make sense of this opinion, you have to jump around some.

Much of Judge Motz's opinion arises from her clearly erroneous assumption that only members of government militaries can be combatants who can be detained for the duration of the war and everyone else is a civilian who must be tried in criminal court.

Her assumption that al Marri is a civilian criminal underpins Judge Motz's gratuitous dicta strongly implying that the Constitution's Supression Clause provides al Marri habeas corpus rights under the reasoning common law habeas corpus was provided to alien civilians at the time the Constitution was ratified. In this way, the Court consciously or unconsciously ducks the fact that neither British or American common law granted foreign prisoners of war habeas review of their designation as POWs.

However, the Court declined to actually rule on her constitutional musings and instead decided to rewrite the MCA to create a new sequential two step process separated in time to determine statutory habeas jurisdiction.

Here is how the Court's two step goes:

Section 2241 of the MCA eliminates habeas jurisdiction over an alien who "has been determined by the United States to have been properly detained as an enemy combatant."

To me, this passage has one element - A determination of whether the petitioner was properly detained as an enemy combatant.

Seems pretty simple, huh? However, here is the Court's MCA two step...

Judge Motz held that the government first had to decide to detain the petitioner and then make a second determination that the initial decision was proper at some time later in time.

The Court artificially bifurcated what appears to be a simple review requirement in order to artificially render insufficient the President's June 24 order which simultaneously reviewed and determined that al Marri was an unlawful enemy combatant and ordered his detention as such.

By requiring that (1) the decision to detain and (2)the determination that detention is proper to be conducted in that exact sequence and separated in time, the Court claimed that the President's order was only the decision to detain even though it also provided the review to justify detention. This two step gives a new meaning to the term "legal fiction."

The Courts are making it quite clear that they do not have the least problem rewriting every congressional statute, no matter how clear the intent, in order to preserve their self appointed place at the table to determine military policy.

Even if the Court had habeas jurisdiction to consider al Marri's petition, the petitioner still had to prove that he was a civilian who had a right to civilian criminal trial under the Due Process Clause of the Constitution. Both parties to the case and Judge Motz agreed that the President does not violate the Due Process Clause by ordering the military to capture and detain enemy combatants for the duration of the war. Thus, in order to apply the Due Process Clause to al Marri, Judge Motz had to turn this al Qaeda terrorist into a common civilian criminal.

As I noted above, Judge Motz's claim members of non-state groups like al Qaeda cannot be wartime enemy combatants is completely without basis in history or law.

Historically, we have frequently been at war with non state groups and have taken prisoner members of pirate groups, Indian tribes and a wide variety of partisan and guerilla groups.

As for the law, Judge Motz disingenuously cited only one of multiple definitions of enemy combatants subject to wartime detention in Article 4 of the GC for the proposition that only members of a government military organization can be enemy combatants. She willfully ignored the very next Article 4 provision which expressly provides combatant status to non state military groups.

To cure this mess of an opinion, the Government needs to appeal to the full 4th Circuit. The 4th is perhaps the most conservative Circuit in the system. IMHO, al Marri has a very strong Patriot Act argument, but the rest of this opinion cannot be allowed to stand as precedent. The 4th Circuit would be the place to do this.

["Bart"]: Under Quirin, al Marri forfeited his 5th and 6th Amendment rights to a criminal trial when he engaged in acts which made him an unlawful enemy belligerent.

[Arne]: This is false. As I pointed out, it was the nature of the crimes the Quirin defendants were charged with that allowed the use of military commissions (and not jury trials in Article III courts).

As I've often noted, "Bart" simply ignores substantive refutations of his assertions and hopes that in a few weeks, we'll have forgotten and "moved on". But we ain't that stoopid. "Bart", OTOH, is....

"As I noted above, Judge Motz's claim members of non-state groups like al Qaeda cannot be wartime enemy combatants is completely without basis in history or law."

Substantiate.

You know: "cites".

We knew you couldn't.

Historically, we have frequently been at war with non state groups and have taken prisoner members of pirate groups, Indian tribes and a wide variety of partisan and guerilla groups."

Your definition of "state" is in relation to the foregoing? And how they have bearing on, say, _Hamdi_, or the US after those uncomfortabilities were dealt with before the Ratificaion of not merely the Constitution, but the Bill of Rights.

Ooops! I just "proved" myself to be a "traitor" because I spoke of rights instead of bullshit.

"As for the law, Judge Motz disingenuously"

Prove the judge a liar.

We knew you couldn't.

Yet again, lie over law.

Torture is a war crime. It is the act that is prohibited, not the eupemized names giveen it by those endeavoring to get away with torture.

You aren't a lawyer. You are a sick, anti-American anti-Christian smut peddlar.

# posted by Bart DePalma : 11:02 PM

If you held anything remotely like the "morality" you preach,, you would be subject to arrest by yourself on the grounds of being a fraud.

Give us your "ticket" number, and the name of the bar with whoich you are allegedly registered: I want to check out what sort of wingnuts allow you to pretend to be ethical, and pretend to uphold your oath against subversion of the rule of law.

Even if the Court had habeas jurisdiction to consider al Marri's petition, the petitioner still had to prove that he was a civilian who had a right to civilian criminal trial under the Due Process Clause of the Constitution.

Think about it, Bart. You are saying, in effect, that the President may designate anyone he wants an enemy combatant, and that person has to prove otherwise in order to even be entitled to a trial. What a great way to escape normal burdens of proof! "No, we don't have enough evidence to sustain charges, but until the defendant proves he's not Al-Qaeda the point is moot."

Bart: ... In this way, the Court consciously or unconsciously ducks the fact that neither British or American common law granted foreign prisoners of war habeas review of their designation as POWs.

There is no such "fact." There is only Bart's theory, which is at odds with the reading of modern U.S. courts. And, as Bart well knows, even the Bush administration does not advance his theory in court. He also fails to mention that even the dissenting judge in this case found constitutional jurisdiction for habeas review.

To state such an extremely controversial and out-of-the-mainstream legal argument as "fact" is simply to lie.

No modern US court has cited Schiever or Three Spanish Sailors for the proposition that these cases provide precedent for it to provide habeas corpus review of whether the Government properly designated a petitioner as a POW. The 4th Circuit had that issue squarely before them and certainly did not for good reason.

I am not going to facilitate your hijacking of yet another thread with your unsupported theory, and your misstatement of prior cases. Readers are free to follow the links backwards from here to review your arguments and mine.

However, in this new case, I would like you to explain how the Al-Marri court "had that issue squarely before them." Cites and quotes, please. The government never even made your claim!

Except for the government's dilatory argument that the MCA stripped habeas jurisdiction for appeal in this case -- a claim rejected by both the majority and the dissent -- there was no controversy at all regarding habeas jurisdiction and review. In fact, the government and district court took the position that in the lower-court proceedings under appeal (which took place before the MCA was entacted) the courts gave Al-Marri habeas review but denied him relief.

No modern US court has cited Schiever or Three Spanish Sailors for the proposition that these cases provide precedent for it to provide habeas corpus review of whether the Government properly designated a petitioner as a POW. The 4th Circuit had that issue squarely before them and certainly did not for good reason.

I would like you to explain how the Al-Marri court "had that issue squarely before them." Cites and quotes, please. The government never even made your claim!

al Marri filed a petition for habeas corpus arguing that the President could not properly designate him as a enemy combatant. Petitioner further argued the Constitution guaranteed his right to habeas review on this issue. In her dicta on the constitutional basis to habeas review, Judge Motz argued that generic aliens were granted habeas review under the common law which was incorporated at the time the Constitution was ratified.

Are you actually claiming that this is not true? If so, go reread the opinion. I am not posting several pages for you to review.

The fact that the Court dodged ruling (if not opining) on al Marri's constitutional habeas argument does not change the fact that the issue was placed squarely before it by al Marri.

Very tellingly, despite raising the argument in his brief that he had the constitutional right to challenge his designation as an enemy combatants, al Marri never argued as you do that Schiever and Three Spanish Sailors represent precedent for this argument as have prior petitioners. The argument has no merit.

Bart: The fact that the Court dodged ruling (if not opining) on al Marri's constitutional habeas argument does not change the fact that the issue was placed squarely before it by al Marri.

I am waiting for you to quote the government's argument to the contrary. An issue cannot be "squarely before" a court without someone making it an issue. The fact is that neither party in this case, and no judge in this panel, disputes jurisdiction for constitutional habeas review.

You can argue that Shievers/Three Spanish Sailors is (1) precedent that habeas review is available to determine whether the government properly designated petitioner a POW (your argument), (2) precedent that habeas review is not available to determine whether the government properly designated petitioner a POW (my argument), or (3) does not provide clear precedent for this question (most courts' observations to date).

I never posted that the Government was advancing my argument or even that my argument was before the Court. Neither the Government nor I need to show that the courts had held that habeas was not available to POWs to prevail on this issue.

Habeas corpus is an affirmative right created at common law. If the common law did not provide for habeas review of POW designations at the time the Constitution was ratified, then the Suspension Claus could not have incorporated such a right.

Thus, I merely noted in my post above that the Court avoided addressing the question of whether the common law provided habeas review for POW by claiming that al Marri was a civilian alien. I did not raise my argument, you did.

Bart: (3) does not provide clear precedent for this question (most courts' observations to date).

That is simply not true. Readers are invited to browse the links beginning here for details.

The U.S. Supreme Court (in Rasul) and the D.C. Court of Appeals (in Boumediene) have read the key precedent to stand for a case where the English court exercised habeas jurisdiction, reviewed the habeas petition, and denied relief after finding evidence that the neutral detainee was a prisoner of war, rejecting his claim that involuntary conscription should have altered such status. Bart reads the case differently, but that's the way our modern courts read it.

No judge addressed this issue explicitly in the Al-Marri case. They didn't have to, because it was not in dispute. Not even the government makes the claim -- at any stage in the case -- that federal courts lacked jurisdiction to review Al-Marri's habeas claim -- because he is deemed an "enemy combatant," a POW, or Santa Claus.

While the majority in the Fourth Circuit did avoid the constitutional question by making a narrow statutory ruling that the MCA did not apply, the dissenting Judge Hudson did find constitutional jurisdiction to consider this habeas appeal. If Hudson, a solid conservative, believed the constitutional jurisdiction did not apply for any reason, he would have said so. But Hudson did not; on the contrary, he found jurisdiction and proceeded to the merits -- voting to affirm the district court's denial of relief after applying habeas review.

Except for the recent question about whether the MCA strips habeas jurisdiction in this case, there never has been a whiff of controversy about whether habeas jurisdiction obtains.

Habeas corpus is an affirmative right created at common law. If the common law did not provide for habeas review of POW designations at the time the Constitution was ratified, then the Suspension Claus could not have incorporated such a right.

Ummm, no one but you, "Bart", claims that the Great Writ wasn't available within the sovereign jurisdiction of the country (as al-Marri is). Lots of lawyers spent lots of time trying to make a case that GUantanamo is different, not being U.S. "sovereign" territory; after all, that's why they put the detainees there if the first place. I don't think it's a good argument, but the fact remains than no one but you and your hallucinations see constitutional habeas as not applying to certain types of people within the U.S.